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Tort - Contributory negligence I

Updated on July 14, 2017

S.1(1) of the (Law Reform) Contributory Negligence Act gives us the scope of contributory negligence as defined by law – Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage:

Provided that—

(a) this subsection shall not operate to defeat any defense arising under a contract;

(b) where any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of this subsection shall not exceed the maximum limit so applicable.

Contributory negligence is a defense i.e. when a defendant is adjudged to be negligent for doing an act he or she should not do or for failing to do something which under normal circumstances others would do or something that the law compels the defendant to do, the defendant can then adduce evidence to show that it was not solely the defendant’s act or omission which led to the damage and that the plaintiff was also partly responsible because the plaintiff failed to exercise due care or caution or failed to act in a manner that was reasonable.

If the defendant is successful the damages that are awarded to the plaintiff will be reduced accordingly or to the extent the plaintiff had contributed to the damage.

In Davies v Swan Motor (1949) the plaintiff was standing by the side of a garbage truck. He was standing alone at the time and the truck was moving slowly because the plaintiff had to jump off at regular intervals and collect the waste and dump it into the back of the truck. A bus overtook the lorry and the plaintiff was killed in the accident that followed. His estate sued and they were successful.

It was held that the bus driver ought to have exercised due care and caution while driving the bus. It was foreseeable that garbage trucks would have workers standing on the outside. The trucks are built in a manner in which they can accommodate, in most instances two workers standing on either side of the truck, and any negligence on the part of other drivers would most likely lead to a mishap.

The damages that were awarded to the plaintiff however were reduced by 1/5 because despite the fact that these garbage trucks were built to accommodate workers standing on the outside, the workers also had a duty to ensure that they did so skillfully or in accordance with the level of skill that is expected or required of them.

In Jones v Livox Quarries (1952) the plaintiff was working in a quarry and during his lunch break he jumped on to the back of a tractor unknown to the driver, despite the fact that it was against the company rules to do so. While the plaintiff was on the back of the tractor, it was hit from the rear by a truck that was driven recklessly and the collision that followed resulted in serious injuries to the plaintiff. The plaintiff sued.

The court held that that the defendant was liable because it was his recklessness that had caused the accident but the damages that were awarded to the plaintiff were reduced by 1/5 because the plaintiff had also contributed to the injuries that he had sustained by jumping on to the back of the tractor without the knowledge of the driver when the rules of the company specifically prohibited him from doing so.

In Stapley v Gypsum Mines (1953) the plaintiff’s husband was working in a mine and he was informed that the roof of the cavern was not steady and company was in the process of bringing the roof down. In the meantime, employees were prohibited from entering the cavern. The first attempt failed and before the employers could try again the plaintiff and another worker entered the cavern. The roof collapsed and the plaintiff was killed in the accident. The plaintiff was working alone at the time. His widow sued.

The court held that that the defendants were liable because they should have taken more care to prevent workers from entering the mine for example sealing the entrance to the cavern off temporarily. However, the court also found that the plaintiff had contributed to his own injuries by doing something that was specifically prohibited by his employers and therefore the damages that were awarded to his widow were reduced by 50%.

© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward

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